Cannabis and the law

Please note that the information on cannabis and the law given on this factsheet does not constitute legal advice and should not be relied upon in this way. The information is correct at the time of publication. People wanting legal advice should consult a lawyer.

Is cannabis illegal in Australia?

Non-medical use of cannabis

It is illegal to use, possess, grow or sell cannabis in Australia, but the penalties for cannabis offences are different in each state and territory. In some states, if someone is caught with a ‘small amount’ of cannabis they may be given a $50 fine, while in other states they may be charged with a criminal offence and receive a much larger fine, or even be sentenced to jail. The definition of a ‘small amount’ of cannabis also differs between states and territories. In response to increases in hydroponic cannabis cultivation (cannabis grown in nutrient rich solutions usually under artificial light), the Australian Drug Misuse and Trafficking Act (1985) was amended in 2006. The amendment reduced the amount of indoor cultivated cannabis needed to qualify for a ‘commercial quantity’ and ‘large commercial quantity’.

Medical use of cannabis

Between 2014 and 2016, the laws around medical cannabis started to change within Australia.

In April 2015, the New South Wales, Queensland and Victorian Governments made plans to undertake medical cannabis trials (due to start in 2016/17).

In February 2016, an amendment to the Narcotics Drugs Act 1967 was passed. The amendment allowed for the establishment of a licence and permit-based cannabis cultivation scheme within Australia. This change in legislation did not make medical cannabis use legal (that is determined at a state level) but did provide for supply, a problem that had previously challenged legalisation efforts.

In April 2016, Victoria passed the Access to Medical Cannabis Bill 2016, which provided a set of rules for manufacture, supply and access to regulated medical cannabis products in Victoria.

In July 2016, the New South Wales Government secured a licence from the Federal Government to grow cannabis for medical use in Australia. This was the first licence approved by the Federal Government since legislation changed earlier in the year.

In August, in line with a change to the Poisons and Therapeutic Goods Amendment (Designated Non-ARTG Products) Regulation 2016, a change in NSW allowed medical practitioners in the state to apply to the NSW Government and the TGA for permission to prescribe cannabis-based products that are not on the Register of Therapeutic Goods, to patients. This last amendment did cause some confusion as the process for approval was quite complex, and supply, especially of plant-based cannabis, was not possible at the time.

What is the difference between decriminalisation and legalisation?

Some jurisdictions have decriminalised minor cannabis offences, such as the possession of a ‘small amount’ of the drug for personal use. This means that the offence can be dealt with by a civil penalty, such as a fine, rather than by receiving a criminal charge. Speeding is a good example of an offence that is commonly dealt with by a civil penalty.

If an offence is decriminalised, it does not mean that it is legal. Legalisation of cannabis would mean that cannabis would no longer be an illicit drug, but would be a legal drug like alcohol and tobacco.

Which states and territories have decriminalised cannabis?

The following states and territories have decriminalised minor cannabis offences. Any cannabis offence is still illegal in these areas.

Australian Capital Territory

The Australian Capital Territory introduced a civil penalty system for the possession of ‘small amounts’ of cannabis in 1993. If someone is caught with up to two non-hydroponic cannabis plants, or up to 25 grams of marijuana (cannabis plant material), they receive a $100 fine with 60 days to expiate (pay the fine) instead of a criminal charge. Instead of paying the fine, the person may choose to attend a drug assessment and treatment program.

South Australia

In 1987, South Australia was the first state to decriminalise minor cannabis offences. The possession of up to 100 grams of marijuana, 20 grams of hash (the resin from the cannabis plant), one non-hydroponic plant or cannabis smoking equipment leads to a fine from $50 to $150 with 60 days to expiate.

Northern Territory

Since 1996, adults found in possession of up to 50 grams of marijuana, one gram of hash oil, 10 grams of hash or cannabis seed, or two non-hydroponic plants can be fined $200 with 28 days to expiate rather than face a criminal charge.

Table 1

Minor cannabis offences in jurisdictions that have decriminalised cannabis

Jurisdiction (year of initiation)

Maximum amount of cannabis allowed

Exclusions

Fine

Alternative to paying fine

SA (1987)

100 grams plant material

20 grams resin

1 plant

artificial cultivation; cannabis oil

$50-150

Criminal conviction

ACT (1992)

25 grams plant material

2 plants

Artificial cultivation; cannabis resin and oil

$100

Attend the Alcohol and Drug Program - an assessment and treatment program

NT (1996)

50 grams plant material

10 grams resin

1 gram oil

10 grams seed

2 plants

$200

Debt to state, no conviction - juveniles are sent to assessment

What happens in other states?

In the rest of Australia, any cannabis offence is a criminal offence. If someone is charged with possession of cannabis in these areas and found guilty, they could receive a large fine or jail time and will have a criminal record.

It is unlikely, however that someone caught with a small amount of cannabis for the first time would receive a criminal conviction, because of the diversion programs that run in these states. Diversion programs aim to divert non-violent drug offenders away from the criminal justice system and into appropriate assessment, education and treatment services. These programs aim to break the criminal cycle associated with illicit drug use by addressing the underlying causes of criminal activity and by encouraging offenders to tackle their drug problems early.

It should be noted that it is usually up to the police officer whether or not to ‘divert’ the offender or charge them. Also, juveniles (those aged under 18 years), or people who have a history of drug offences or violence are ineligible for diversion. Juveniles may be treated under individual state laws such as the Young Offenders Act 1997 (NSW) which seeks to steer young offenders away from the court by directing them to alternative forms of intervention.

New South Wales

If someone is caught with up to 15 grams of cannabis in New South Wales, they may receive a ‘caution’ from the police officer, which includes information about the harms associated with cannabis use and a number to call for drug-related information or referral. Only two cautions are allowed to be given to the same person.

Victoria

A police officer may give someone a caution and offer them the opportunity to attend a cannabis education program if they are caught with no more than 50 grams of cannabis. Like New South Wales, only two cautions are allowed to be given to the one person.

Tasmania

Someone found in the possession of up to 50 grams of cannabis can be given a caution up to three times in ten years. For the first caution, information and referral is provided. A brief intervention is given with the second caution. On the third and final caution, the offender must be assessed for drug dependence and attend either a brief intervention or treatment program.

Queensland

Police officers in Queensland offer someone the option of diversion if they are found in possession of up to 50 grams of cannabis. This is the only state in which diversion must be offered to a minor cannabis offender – elsewhere, it is up to the police officers whether or not they offer diversion or charge the offender. The diversion includes a mandatory assessment and brief intervention program. Only one offer of diversion is allowed per person.

Western Australia

In 2004 Western Australia introduced a civil penalty scheme for cannabis possession.

With a change of government in 2008 this scheme was overturned. As of August 2011, individuals in possession of not more than 10 grams of harvested cannabis and/or a used smoking implement who have no prior cannabis offences will be required to attend a Cannabis Intervention Session (CIS) within 28 days or receive a cannabis conviction for the offence. All cannabis cultivation offences will attract a criminal conviction.